Unnikrishnan v. State of Kerala and K. Ramakrishnan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 13TH DAY OF OCTOBER 2017/21ST ASWINA, 1939** **Crl.Rev.Pet.No. 94 of 2017 ()** **------------------------------** **CRA 315/2015 OF SESSIONS COURT, PALAKKAD ST 4018/2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT- I, OTTAPPALAM** **-------------** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **----------------------------------------** ## **UNNIKRISHNAN** **AGED 49 YEARS, S/O.KOOTHATH APPUKUTTA GUPTHAN, MANNAMBATTA AMSOM & DESOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT.** **BY ADVS.SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE** ## **RESPONDENT(S)/STATE/COMPLAINANT:** **--------------------------------** ## **1. STATE OF KERALA,** **REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.682 031.** ## **2. K.RAMAKRISHNAN,** **AGED 51 YEARS, S/O.KOOTHATH APPUKUTTA GUPTHAN, KADAMPAZHIPURAM AMSOM DESOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT.** **R1 BY PUBLIC PROSECUTOR SRI SAIGI JACOB PALATTY R2 BY ADV. SRI.RAJESH SIVARAMANKUTTY** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **K.V.** ## **ALEXANDER THOMAS, J.** ================== ## Crl.R.P.No. 94 of 2017 ================== Dated this the 13[th] day of October, 2017 ## **O R D E R** The petitioner is the accused in Summary Trial Case, S.T.No. 4018/2010 on the file of the Judicial First Class Magistrate's Court-I, Ottapalam, for offence punishable under Sec.138 of the Negotiable Instruments Act, instituted on the basis of the complaint filed by the 2[nd] respondent (complainant) herein. The trial court as per the impugned judgment dated 18.11.2015 had convicted the petitioner and had sentenced him to undergo simple imprisonment for 3 months and to pay fine of Rs.2,88,000/- under Sec.138 of the Negotiable Instruments Act, on payment of which, the same was ordered to be paid as compensation to the complainant, with the default sentence clause of 2 months' simple imprisonment. Aggrieved thereby, the petitioner had preferred Crl.Appeal No.315/2015 before the appellate Sessions Court concerned (Court of Sessions Judge, Palakkad Division). The appellate court as per the impugned appellate judgment dated 25.11.2016 had upheld the conviction, but modified the substantive sentence to imprisonment till rising of the court and to pay fine of Rs. 2,77,200/-, with a default sentence clause of two months' simple imprisonment. It is aggrieved by the said concurrent findings of both the courts below that the petitioner has preferred the Crl.R.P.No.94/17 - : 2 :- instant revision petition by taking recourse to the remedies available under Sec.397 read with Sec.401 of the Cr.P.C. 2. Heard Sri.S.Rajeev, learned counsel appearing for the revision petitioner (accused), Sri.Rajesh Sivaramankutty, learned counsel appearing for R-2 (complainant) and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-1 State. 3. The complainant and the accused in this case are brothers. The case of the complainant is that the accused had borrowed an amount of Rs.2,20,000/- from him, which was promised to be repaid along with interest thereon @ 12% p.a thereon and that, in discharge of the said liability, the accused had issued Ext.P-1 cheque dated 2.8.2010 from his account for amount of Rs. 2,77,200/- (which reflects the principal amount as well as interest thereon) and that the cheque when presented, resulted in dishonour as per Ext.P-2 bank memo dated 6.8.2010. That thereupon the complaint had issued Ext.P-3 statutory demand notice dated 18.10.2010 under Sec. 138 proviso (b) of the Negotiable Instruments Act calling upon the petitioner to pay of the amounts covered by the cheque within a period of 15 days from the date of receipt of the notice. The said notice sent by registered post was returned with the endorsement, “ _unclaimed_ ” and that since the amount was not paid within the requisite time, the complainant, after complying with procedural formalities had filed the instant complaint, which led to the conduct of the trial. Crl.R.P.No.94/17 - : 3 :- 4. During the trial, the complainant has examined P.W-1 (complainant) and P.W-2 (complainant's wife) and has marked Ext.P-1 to P-6 documents. The defence has marked Ext.D-1 series and Ext.D-2 document, but has not adduced any oral evidence. 5. It is also relevant to note that for the recovery of the very same money covered by the same dishonoured cheque involved in this case, the complainant has filed a civil suit as O.S.No. 279/2010 before the Sub Court, Ottapalam, in which the petitioner (accused) herein was arrayed as defendant therein. The original of the dishonoured cheque and cheque return memo were produced before the civil court. Consequently, the complainant had produced certified copy of the cheque as well as certified copy of the cheque return memo as Exts.P-1 and P-2 respectively, in the present complaint. 6. The specific defence taken up by the accused was to the effect that during the relevant time, the complainant and the accused, who are brothers, were living under the same roof with their respective families and that one of the blank unsigned cheques of the petitioner was unauthorisedly taken by the complainant and the petitioner was not aware of about it and for the first time he came to known that the said cheque has been used when the petitioner was intimated about the attachment orders issued by the Civil Court in the suit filed by the complainant herein. It is his case that all the written entries in the cheque as well as the signature Crl.R.P.No.94/17 - : 4 :- therein are not made by him and that the cheque has been misused by the complainant and the version of the complainant that he had advanced an amount of Rs.2,20,000/- and that the petitioner had agreed to pay interest thereon, etc. and that the cheque was issued in discharge of the said liability, etc. are false and incorrect, etc. 7. It is not in dispute that the petitioner had submitted Criminal Miscellaneous Petition before the trial court praying that the cheque may be sent to the expert agency for analysing the handwritings and the signature therein so as to ascertain the correctness or otherwise of the petitioner's contention that none of the written entries as well as the signature in the cheque does not belong to the petitioner, etc. But the trial court has rejected the said request. The appellate court has also found that the rejection of the request to send the cheque for expert handwriting analysis has not in any manner vitiated the trial. Both the courts below have considered the other evidence on record and has also come to the conclusion that the petitioner is liable to be convicted for the offence under Sec. 138 of the Negotiable Instruments Act. 8. The petitioner has now filed an affidavit before this Court stating that in the abovesaid civil suit, the complainant himself, as the plaintiff therein, had filed an application to send the original of the abovesaid cheque to the Regional Forensic Science (FSL) Laboratory, Police Department, Government of Kerala, for expert handwriting analysis Crl.R.P.No.94/17 - : 5 :- and that the Regional FSL, Thrissur, has issued report dated 20.10.2014 to the civil court stating that, after carefully and thoroughly examining the questioned documents with the standard documents, in all aspects of handwriting identification and detection of forgery with scientific aids in the Regional FSL at Thrissur, their expert finding is to the effect that it has not been possible to arrive at any definite conclusion regarding the authorship of the questioned document, compared to the specimen materials. That aggrieved by the said finding made by the said expert agency, the complainant herein had filed another application before the civil court praying for a direction that the original of the said cheque should again be sent to the Government Forensic Science Laboratory, under the Directorate of the Forensic Sciences, Government of Kerala, Thiruvananthapuram, for expert analysis and opinion. That the said request made by the complainant was rejected by the trial court and the petitioner has approached this Court by filing petition under Art.227 of the Constitution of India, praying for a direction to set aside the said order of the civil court and for direction to send the cheque to the Directorate of Forensic Science Laboratory, Thiruvananthapuram for expert opinion. 9. So it appears that even the complainant has approached this Court in appropriate civil proceedings with the prayer that the cheque has to be subjected to a second round of expert examination by the Directorate of Forensic Science Laboratory, Thiruvananthapuram, in the abovesaid Crl.R.P.No.94/17 - : 6 :- civil proceedings. 10. On this basis, Sri.S.Rajeev, learned counsel appearing for the revision petitioner (accused) would strongly urge that the refusal by the criminal trial court to send the cheque for expert opinion to the Governmental agency has caused serious prejudice and unfairness to the petitioner and the trial itself is vitiated on that ground alone. 11. Per contra, Sri.Rajesh Sivaramankutty, learned counsel appearing for the 2[nd] respondent (complainant) would urge that in the civil suit, the burden is on the plaintiff (complainant herein) to establish on the basis of the preponderance of probability that the cheque has been executed and issued by the defendant therein and therefore the mere fact that the respondent complainant had requested the civil court to send the cheque for expert opinion, is no ground for the petitioner (accused) to seek the same prayer before the criminal trial court. However, it is imperative to note that in view of the reverse onus clause in Sec. 138 of the N.I. Act, the accused is burdened with the onus to rebut the statutory presumption. 12. The Apex Court has held in the judgment in _**T.Nagappa v. Y.R. Muralidhar,**_ reported in (2008) 5 SCC 633 that what should be the nature of evidence is not a matter, which should be left only to the discretion of the court and it is essentially the accused, who knows how to prove his defence, and that the court being the master of the proceedings, must determine as to whether the application filed by the accused in terms Crl.R.P.No.94/17 - : 7 :- of Sec. 243(2) of the Cr.P.C. is bona fide or not or whether thereby, he intends to bring on record a relevant material, but that ordinarily an accused should be allowed to approach the court for obtaining its assistance with regard to summoning of witnesses, etc. If permitted to do so, steps therefor, however, must be taken within a limited time and that the accused should not be allowed to unnecessarily protract the trial or summon witnesses whose evidence would not be at all relevant. The rejection of the bona fide application of the appellant accused, was held to be improper. It will be profitable to refer to paras 8 to 11 of the abovesaid decision of the Apex Court in _**Nagappa's case**_ supra, which read as follows: _'8. An accused has a right to fair trial. He has a right to defend himself as a part of his human as also fundamental right as enshrined under Article 21 of the Constitution of India. The right to defend oneself and for that purpose to adduce evidence is recognised by Parliament in terms of sub-section (2) of Section 243 of the Code of Criminal Procedure, which reads as under:_ _“243. Evidence for defence.—(1) * * *_ _(2) If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing:_ _Provided that, when the accused has cross-examined or had the opportunity of crossexamining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice._ ” 9. What should be the nature of evidence is not a matter which should be left only to the discretion of the court. It is the accused who knows how to prove his defence. It is true that the court being the master of the proceedings must determine as to whether the application filed by the accused in terms of subsection (2) of Section 243 of the Code is bona fide or not or whether thereby he intends to bring on record a relevant material. But ordinarily an accused should be allowed to approach the court for obtaining its assistance with regard to summoning of witnesses, etc. If permitted to do so, steps therefor, however, must Crl.R.P.No.94/17 - : 8 :- be taken within a limited time. There cannot be any doubt whatsoever that the accused should not be allowed to unnecessarily protract the trial or summon witnesses whose evidence would not be at all relevant. 10. The learned trial Judge as also the High Court rejected the contention of the appellant only having regard to the provisions of Section 20 of the Negotiable Instruments Act. The very fact that by reason thereof, only a prima facie right had been conferred upon the holder of the negotiable instrument and the same being subject to the conditions as noticed hereinbefore, we are of the opinion that the application filed by the appellant was bona fide. 11. The issue now almost stands concluded by a decision of this Court in _Kalyani Baskar_ v. _M.S. Sampoornam_ (in which one of us, L.S. Panta, J., was a member) wherein it was held: (SCC p. 262, para 12) _“12. Section 243(2) is clear that a Magistrate holding an inquiry under CrPC in respect of an offence triable by him does not exceed his powers under Section 243(2) if, in the interest of justice, he directs to send the document for enabling the same to be compared by a handwriting expert because even in adopting this course, the purpose is to enable the Magistrate to compare the disputed signature or writing with the admitted writing or signature of the accused and to reach his own conclusion with the assistance of the expert. The appellant is entitled to rebut the case of the respondent and if the document viz. the cheque on which the respondent has relied upon for initiating criminal proceedings against the appellant would furnish good material for rebutting that case, the Magistrate having declined to send the document for the examination and opinion of the handwriting expert has deprived the appellant of an opportunity of rebutting it. The appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial. ‘Fair trial’ includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and the courts should be jealous in seeing that there is no breach of them.”_ ## 13. In the judgment in _**Kalyani Baskar v. M.S.**_ _**Sampoornam,**_ reported in (2007) 2 SCC 258 = 2007(1) Crimes.106 (SC) the Apex Court dealt with a case, where the appellant accused faces prosecution for offence of dishonour of cheque and on conclusion of complainant's evidence he had preferred an application to send the cheque in question for expert opinion to ascertain genuineness of appellant's signature and the learned Magistrate dismissed the application. It was held therein that the appellant Crl.R.P.No.94/17 - : 9 :- accused was entitled to rebut the case of the respondent and the Magistrate by declining to send the document (cheque) for examination by handwriting expert, deprived the appellant of an opportunity to rebut the case and denial of that right amounted to denial of fair trial and the impugned order was set aside and the application was allowed. It will be profitable to refer to para 12 of the abovesaid decision in _**Kalyani Bhaskar's case supra**_ , which reads as follows: (see SCC report) _**“12.** Section 243(2) is clear that a Magistrate holding an inquiry under CrPC in respect of an offence triable by him does not exceed his powers under Section 243(2) if, in the interest of justice, he directs to send the document for enabling the same to be compared by a handwriting expert because even in adopting this course, the purpose is to enable the Magistrate to compare the disputed signature or writing with the admitted writing or signature of the accused and to reach his own conclusion with the assistance of the expert. The appellant is entitled to rebut the case of the respondent and if the document viz. the cheque on which the respondent has relied upon for initiating criminal proceedings against the appellant would furnish good material for rebutting that case, the Magistrate having declined to send the document for the examination and opinion of the handwriting expert has deprived the appellant of an opportunity of rebutting it. The appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial. “Fair trial” includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and the courts should be jealous in seeing that there is no breach of them. We have not been able to appreciate the view of the learned Judge of the High Court that the petitioner has filed application under Section 243 CrPC without naming any person as witness or anything to be summoned, which are to be sent for handwriting expert for examination. As noticed above, Section 243(2) CrPC refers to a stage when the prosecution closes its evidence after examining the witnesses and the accused has entered upon his defence. The appellant in this case requests for sending the cheque in question, for the opinion of the handwriting expert after the respondent has closed her evidence, the Magistrate should have granted such a request unless he thinks that the object of the appellant is vexation or delaying the criminal proceedings. In the circumstances, the order of the High Court impugned in this appeal upholding the order of the Magistrate is erroneous and not sustainable.”_ 14. Incidentally, though in the context of a civil proceedings the Crl.R.P.No.94/17 - : 10 :- Apex Court has held in the _**Lakshmi & Anr. v. Chinnammal & Ors,**_ reported in (2009) 13 SCC 25, para 13, that if bringing on record a document is essential for proving the case by a party, ordinarily the same should not be refused; the court’s duty being to find out the truth. That the procedural mechanics necessary to arrive at a just decision must be encouraged, etc. Coming to the facts of the instant case, the specific defence taken out by the petitioner accused is to the effect that the complainant and the accused being brothers and living together under the same roof at the relevant time and that the cheque in question would have been unauthorizedly taken by the complainant at that time and that the petitioner came to know about the cheque being presented,only when he received intimation from the civil court about the attachment order in the civil suit filed by the complainant alleging dishonour of cheque in question. Further it is pointed out by the accused that it has come out in evidence that the statutory demand notice sent by the complainant under Sec.138 proviso (b) of the N.I. Act was not physically served on the accused and that for this reason, the accused could not send any reply within the stipulated time stating his defence to the statutory demand notice. The learned counsel for the 2[nd] respondent complainant would point out that the statutory demand notice under Sec. 138 proviso (b) of the N.I. Act was sent to the accused in the correct address and though it was physically served, the court below has rightly found that it has been legally deemed to have Crl.R.P.No.94/17 - : 11 :- been served on the petitioner by virtue of the mandate of Sec. 27 of the General Clauses Act as the said notice was sent by registered post. So the specific defence taken up by the accused is to the effect that none of the written entries as well as the signature in the cheque belong to him and the petitioner himself has ventured before the trial court that he wants to prove the correctness of the said defence plea by sending the cheque for expert analysis by a Governmental agency. Adjudging the abovesaid factual issues in the framework of the legal position as affirmed by the Apex Court, this Court has no hesitation to hold that the denial of the plea made by the accused for subjecting the said cheque for expert handwriting analysis, has deprived of a reasonable opportunity to the accused to defend himself effectively and properly before the criminal court concerned. Therefore, this Court is constrained to take the view that the impugned conviction and sentence imposed on the petitioner by the impugned judgments are illegal and improper and the said impugned judgments are set aside. 15. The matter has to be remitted and this Court had specifically queried to both sides as to whether the matter should be remitted to the appellate court with a direction to the invoke its powers to take additional evidence and then subject the cheque for expert analysis or whether the matter should be remitted to the trial court. The learned counsel for the petitioner accused has submitted that the matter may be remitted to the trial court as the aggrieved party concerned will get an opportunity to Crl.R.P.No.94/17 - : 12 :- appeal before the Sessions Court. The learned counsel appearing for the respondent complainant would also submit that in case this Court is remitting the matter, then the matter may be remitted to the trial court and not to the appellate court. 16. Accordingly, in this view of the matter, the impugned judgments of both the courts below are set aside and the matter is remitted to the trial court for the limited purpose of ensuring that the cheque is subjected for expert handwriting analysis by the Directorate of Forensic Sciences Laboratory, Government of Kerala, Thiruvananthapuram, with liberty to the parties to examine the expert who has issued the report thereof. 17. Now one aspect requires to be dealt with. The original of the cheque is with the civil court and whereas the criminal trial court is only having the certified copy of the cheque. Expert analysis can be effectuated only by using the original of the cheque. Rule 251 of the Criminal Rules of Practice, reads as follows: _**“Rule 251. Court to consider whether a certified copy of the record is sufficient.-** Before issuing a summons for the production of a document in the custody of another court, the court shall consider whether the interested party should not be required to obtain and file a certified copy thereof. The original shall ordinarily be summoned only if the court is satisfied that it would entail unreasonable expense or delay to obtain a certified copy or that production of the original is necessary for the purposes of justice.”_ 18. It is also ordered that the order passed by the trial court rejecting the request of the petitioner to subject the cheque for expert Crl.R.P.No.94/17 - : 13 :- analysis will stand set aside. The order passed earlier by the trial court denying the request of the accused for subjecting the cheque for expert analysis is held to be illegal and improper. The petitioner will be at liberty to file a fresh application before the trial court praying for orders to subject the cheque for expert handwriting analysis and to call for the original of the cheque from the civil court concerned (Sub Court, Ottapalam), which is dealing with O.S.No. 279/2010). Thereafter, the trial court will ensure that necessary orders are passed to ensure that the original of the cheque is secured from the civil court and, the specimen handwritings and specimen signatures of the petitioner/accused are collected in accordance with the due procedure. The original of the cheque and the aforesaid specimen materials should be forwarded to the Forensic Science Laboratory under the Directorate of Forensic Sciences, Government of Kerala, Thiruvananthapuram, for their expert opinion in the matter of handwriting analysis. 19. Having regard to the pendency of the matter, it is ordered that the Director of Forensic Science Laboratory, Government of Kerala, Thiruvananthapuram will ensure that the process of giving the expert opinion should be finalised within 3 to 4 months from the date of receipt of the original cheque and the specimen materials from the criminal court and the expert opinion along with its specimen signatures and the original of the cheque should be returned back to the criminal court without any further delay. The learned Prosecutor is requested to furnish a certified Crl.R.P.No.94/17 - : 14 :- copy of this order to the Director of the Forensic Science Laboratory, Government of Kerala, Thiruvananthapuram, for effective compliance of these directions. After obtaining the original of the cheque, the criminal court without any further delay, shall transmit the original of the cheque to the civil court concerned. After the formalities of taking evidence in this regard are duly completed, the criminal trial court will ensure that the original of the cheque is returned back to the civil court without any further delay. Thereafter, both sides will ensure that final arguments are completed without any further delay and the trial court will ensure that the trial is completed as expeditiously as possible, giving it top priority. It is pointed out by the learned counsel for the petitioner accused that the petitioner had earlier deposited amount of Rs. 1 lakh before the trial court in relation to this case in compliance with the interim order dated 3.4.2017 passed by this Court in this revision petition. If that be so, the trial court will ensure that the said amount is placed in a fixed deposit in the treasury so as to ensure maximum rate of interest. 20. The learned counsel for the 1[st] respondent complainant would submit that necessary orders may be issued so as to ensure that the trial court will also send the specimen signatures of the petitioner accused already available in the case records, like vakalath and summons, etc. It is open to the respondent complainant to make such a plea before the trial court at the time of sending the materials to the FSL and the trial court may deal with such request in appropriate manner, in accordance with law. Crl.R.P.No.94/17 - : 15 :- The Registry will forward a copy of this order to the trial court at the cost of the petitioner. With these observations and directions, the aforecaptioned Crl.R.P. stands finally disposed of. Sd/sdk+ **ALEXANDER THOMAS, JUDGE** ///True Copy/// P.S. to Judge